This bill revises the procedures for the granting of bail, amends the procedure for annulment of violations and class B misdemeanors depending on the date of conviction, and amends the requirements for demonstrating indigency for the purpose of annulment of a criminal record.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Short Title. This act shall be known as the Criminal Justice Reform and Economic Fairness Act of 2018.

2 Bail and Recognizances; Release of a Defendant Pending Trial. RSA 597:2 is repealed and reenacted to read as follows:

597:2 Release of a Defendant Pending Trial.

I. Except as provided in paragraph VI, upon the appearance before the court of a person charged with an offense, the court shall issue an order that, pending arraignment or trial, the person be:

(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c) Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph VIII.

II. Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing. The court shall issue an order that, pending a probation violation hearing, the person be:

(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c) Detained.

III.(a) The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required. A person who the court determines to be a danger to the safety of that person or the public shall be governed by the provisions of paragraph IV, except that such dangerousness determination shall not be based solely on evidence of drug or alcohol addiction or homelessness.

(b) In determining the amount of the unsecured appearance bond or cash or corporate surety bail under subparagraph II(a), if any, the court:

(1) Shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition.

(2) Shall consider whether the person is the parent and sole caretaker of a child and whether, as a result, such child would become the responsibility of the division of children, youth and families.

(3) Shall consider whether the person is the sole income producer for dependents.

(c) For purposes of the court’s determination under this paragraph, evidence of homelessness or a lack of a mailing address by itself shall not constitute prima facie evidence of a lack of reasonable assurance that a person will not appear.

(d) If, as a result of the court’s decision, a person is detained, the court shall issue on the record findings of fact that document the basis for its decision.

(e) If the court or justice determines by a preponderance of the evidence that the release described in this paragraph will not reasonably assure the appearance of the person, the court shall issue an order that includes the following conditions, subject to the limitation in subparagraph(b)(1):

(1) The condition that the person not commit a crime during the period of release; and

(2) Such further condition or combination of conditions that the court determines will reasonably assure the appearance of the person as required, which may include the condition that the person:

(A) Execute an agreement to forfeit, upon failing to appear within 45 days of the date required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, and post with the court such indicia of ownership of the property or such percentage of the money as the court or justice may specify;

(B) Furnish bail for his or her appearance by recognizance with sufficient sureties or by deposit of moneys equal to the amount of the bail required as the court may direct; and

(3) Satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of the person or the public.

(f) In considering the conditions of release described in subparagraph (e)(2)(A) or (e)(2)(B), the court may, upon its own motion, or shall, upon the motion of the state, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.

IV.(a) If a person is charged with any criminal offense, an offense listed in RSA 173-B:1, I or a violation of a protective order under RSA 458:16, III, or after arraignment, with a violation of a protective order issued under RSA 173-B, the court may order preventive detention without bail, or, in the alternative, may order restrictive conditions including but not limited to electronic monitoring and supervision, only if the court determines by clear and convincing evidence that release will endanger the safety of that person or the public. The court may consider the following conduct as evidence of posing a danger, including, but not limited to:

(1) Threats of suicide.

(2) Acute depression.

(3) History of violating protective orders.

(4) Possessing or attempting to possess a deadly weapon in violation of an order.

(5) Death threats or threats of possessiveness toward another.

(6) Stalking, as defined in RSA 633:3-a.

(7) Cruelty or violence directed toward pets.

V. A no-contact provision contained in any bail order shall not be construed to:

(a) Prevent counsel for the defendant from having contact with counsel for any of the individuals protected by such provision; or

(b) Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.

VI. If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a, the person shall be detained without bail pending arraignment pursuant to RSA 173-B:9, I(a).

VII. In a release order issued pursuant to this section, the court shall include a written statement that sets forth:

(a) All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct; and

(b) The provisions of RSA 641:5, relative to tampering with witnesses and informants.

VIII. A person charged with an offense who is, or was at the time the offense was committed, on release pending trial for a felony or misdemeanor under federal or state law, release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under federal or state law; or probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III, may be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays and holidays. The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state, or local law enforcement official. Upon such notice, the court shall direct the clerk to notify by telephone the department of corrections, division of field services, of the pending bail hearing. If the department fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial. Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole may be subject to arrest and detention as probation and parole violators.

IX. Upon the appearance of a person charged with a class A or class B misdemeanor, the court shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court determines pursuant to paragraph IV that such release will endanger the safety of the person or the public. The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.

X. A person detained by a circuit court has the right to:

(a) In the first instance, a hearing in circuit court within 36 hours after the filing of the motion, excluding weekends and holidays on a motion to reconsider the original detention order; and

(b) A decision upon a de novo appeal, pursuant to RSA 597:6-e, II, to the superior court within 36 hours of the filing of the appeal, excluding weekends and holidays.

3 Bail and Recognizances; Review and Appeal of Release or Detention Order. Amend RSA 597:6-e, II to read as follows:

II. Subject to RSA 597:2, X, the person or the state may file with the superior court a motion for revocation of the order or amendment of the conditions of release set by a municipal or district court, by a justice, or by a bail commissioner. The motion shall be determined promptly. However, no action shall be taken on any such motion until the moving party has provided to the superior court certified copies of the complaint, affidavit, warrant, bail slip, and any other court orders relative to each charge for which a release or detention order was issued by a justice, or a bail commissioner. In cases where a district court justice has made a finding, pursuant to RSA 597:2, [III-a] IV that the person poses a danger to another, the superior court shall, after notification to both parties, the police department that brought the charges in district court, and the victim, conduct a hearing and make written findings supporting any modifications and reasons for new conditions or changes from the district court order. The reviewing court shall take into consideration the district court's written findings, orders, pleadings, or transcript when making a modification.

II. For an offense disposed of before January 1, 2019 and any offense not subject to paragraph II-a, any person whose arrest has resulted in a finding of not guilty, or whose case was dismissed or not prosecuted, may petition for annulment of the arrest record or court record, or both, at any time in accordance with the provisions of this section. Any person who was convicted of a criminal offense whose conviction was subsequently vacated by a court may petition for annulment of the arrest record or court record, or both, in accordance with the provisions of this section. Nothing in this paragraph shall limit the provisions of paragraph XI(b).

5 New Paragraph; Annulment of Criminal Records. Amend RSA 651:5 by inserting after paragraph II the following new paragraph:

II-a.(a) For an offense disposed of on or after January 1, 2019, any person whose arrest has resulted in a finding of not guilty on all charges that resulted from the arrest, or whose case was dismissed or not prosecuted, shall have the arrest record and court record annulled:

(1) Thirty days following the finding of dismissal if an appeal is not taken under RSA 606:10 or finding of not guilty; or

(2) Upon final determination of the appeal affirming the finding of dismissal if an appeal is taken under RSA 606:10.

(b) For an offense disposed of on or after January 1, 2019, any person who was convicted of a criminal offense whose conviction was subsequently vacated by a court shall have the arrest record and court record annulled. Nothing in this paragraph shall limit the provisions of paragraph XI(b).

(a)(1) For a violation with a conviction date prior to January 1, 2019 or a violation with a conviction date on or after January 1, 2019 that was not the highest offense of conviction, one year, unless the underlying conviction was for an offense specified under RSA 259:39.

(2) For a violation with a conviction date on or after January 1, 2019 where the violation was the highest offense of conviction, unless the underlying conviction was for an offense specified under RSA 259:39, or another violation for which there is an enhanced penalty for a subsequent conviction, after the person has completed all the terms and conditions of the sentence. Upon completion of a petition by the person stating that the conviction is eligible for annulment, the court shall submit a notice of its determination to the person convicted of the offense and to the prosecutor. The prosecutor shall have 20 days from the date of receipt of the notice to object to the annulment on the ground that the offense is not eligible for annulment or that the person has not completed all the terms and conditions of the sentence. If the prosecutor fails to timely object or the court denies the prosecutor’s objection, the court shall annul the conviction.

(b)(1) For a class B misdemeanor with a conviction date prior to January 1, 2019 or a class B misdemeanor with a conviction date on or after January 1, 2019 that was not the highest offense of conviction, except as provided in subparagraphs (f) and (h), 2 years.

(2) For a class B misdemeanor with a conviction date on or after January 1, 2019 where the class B misdemeanor was the highest offense of conviction, except as provided in subparagraphs (f) and (h), 2 years after the person has completed all the terms and conditions of the sentence. Upon completion of a petition by the person stating that the class B misdemeanor is eligible for annulment, the court shall submit a notice of its determination to the person convicted of the offense and to the prosecutor. The prosecutor shall have 20 days from the date of receipt of the notice to object to the annulment on the ground that the offense is not eligible for annulment or that the person has not completed all the terms and conditions of the sentence. If the prosecutor fails to timely object or the court denies the prosecutor’s objection, the court shall annul the conviction.

IX. When a petition for annulment is timely brought, the court shall require the department of corrections to report to the court concerning any state or federal convictions, arrests, or prosecutions of the petitioner and any other information which the court believes may aid in making a determination on the petition. The department shall charge the petitioner a fee of $100 to cover the cost of such investigation unless the petitioner demonstrates that he or she is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II. The department of safety shall charge the successful petitioner a fee of $100 for researching and correcting the criminal history record accordingly, unless the petitioner demonstrates that he or she is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II. The court shall provide a copy of the petition to the prosecutor of the underlying offense and permit them to be heard regarding the interest of justice in regard to the petition. The petitioner's request for a court filing fee waiver shall be submitted on a form supplied by the court.

(d) Upon payment of a fee not to exceed $100 to the state police, andsubject to the provisions of subparagraph XI(b), the state police criminal records unit shall remove the annulled criminal record and inform all appropriate state and federal agencies of the annulment, unless the petitioner demonstrates that he or she is indigent, or has been found not guilty, or the case has been dismissed or not prosecuted in accordance with paragraph II. The state police shall grant the fee waiver request where the petitioner demonstrates indigency by including with the fee waiver request an affidavit listing the petitioner's monthly net income and that of his or her spouse, and the assets of the petitioner and his or her spouse. The fee waiver request form used shall be substantially similar to the forms for waiver of fees and costs in the superior courts.

This bill revises the procedures for the granting of bail, amends the procedure for annulment of violations and class B misdemeanors depending on the date of conviction, and amends the requirements for demonstrating indigence for the purpose of annulment of a criminal record.

The Department of Safety states the bill does not alter the language in RSA 651:5,II(b) requiring payment of a $100 administrative fee to remove the annulled conviction and arrest from the New Hampshire and FBI Criminal History Record Information (CHRI) database. The bill does provide that if the petitioner can demonstrate he or she is indigent, they can request a waiver of the fee. The Department indicates the number of petitioners making a waiver request and having it approved is unknown so the impact on state restricted revenue to the Criminal Records Unit is indeterminable. The Department assumes there would be no impact on state, county or local expenditures.

The Judicial Branch indicates the proposed bill would make changes to bail procedures in RSA 597:2 and to the statute regarding annulment of criminal convictions RSA 651:5. The proposed changes to RSA 597:2 provide for expedited scheduling, are consistent with current practices, and do not add any new cases to the caseload of the Judicial Branch; however they could have an indeterminable impact if assignment of judges is necessary to meet the proposed deadlines. The changes in the annulment statute that could have a fiscal impact on the Branch are in proposed RSA 651:5, III (a)(2), proposed RSA 651:5 III (b)(2), and proposed RSA 651:5, IX. The first two changes require the Branch to provide notice to defendants and prosecutors of eligibility for annulment. The Branch indicates, given the number of violation level offenses and class B misdemeanor convictions, the cost of giving the notices required in the bill is likely to result in a fiscal impact in excess of $10,000. The proposed amendment to RSA 651:5, IX provides that requests for waiver of filing fees on a petition for annulment be on a form supplied by the court. The Branch indicates this requirement would also result in an indeterminable fiscal impact.

The New Hampshire Association of Counties does not expect this bill would impact county revenues or expenditures.

AGENCIES CONTACTED:

Department of Safety, Judicial Branch and New Hampshire Association of Counties